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2021 DIGILAW 1189 (RAJ)

Dilip Kumar Chouhan v. State Of Rajasthan

2021-07-22

DINESH MEHTA

body2021
JUDGMENT 1. The petitioners involved in this batch of writ petitions are having qualifications of Diploma in Aayush Nursing and Pharmacy (DAN & P) and are qualified to work on the post of Ayurvedic Nurse/Compounder Grade Junior. By way of these petitions, a direction has been sought to engage them as Covid Health Assistants, pursuant to the recruitment notifications, issued by the different Chief Medical & Health Officers of districts of Rajasthan. 2. In a bid to meet the challenges faced by the State on account of sudden surge of Covid cases (second wave), the State Government decided to recruit Covid Health Consultants and Covid Health Assistants and an order dated 18.05.2021 in this regard came to be issued by the State Government. 3. According to the said order, one Covid Health Assistant in each Gram Panchayat; three Covid Health Assistants in each Primary Health Centre and two Covid Health Assistants in each District Hospital Covid Centre were to be engaged on urgent temporary basis. Detailed guidelines in this regard were issued and accordingly recruitments for each district was to be made by a Committee headed by the District Collector. For the post of Covid Health Assistant, qualification prescribed was that a candidate should be Nurse Gr.II/GNM and should be registered with the Rajasthan Nursing Council. 4. Pursuant to the Government order dated 18.05.2021, Chief Medical & Health Officers (being ex-Officio Secretary of the Committee) issued advertisements. In relation to minimum qualification, the advertisements clearly stipulated that the candidate must be a GNM and must have registration with the Rajasthan Nursing Council. 5. The petitioners have approached this Court with a grievance that the respondents are not considering them for the advertised posts of Covid Health Assistants, though they are eligible and are also able to discharge the functions, which a Covid Health Assistant or normal GNM can discharge. 6. Mr. Saluja, learned counsel for the petitioners, argued that the course curriculum, which the petitioners have undergone, if compared with the course curriculum which a GNM undertakes, is the same; the petitioners are also trained in all traits in nursing care including giving injection and vaccination etc. and thus, can perform the duties and responsibilities which a Covid Health Assistant is required to perform. 7. and thus, can perform the duties and responsibilities which a Covid Health Assistant is required to perform. 7. Learned counsel invited Court's attention towards the advertisement dated 23.05.2021, issued by the Chief Medical & Health Officer, Chittorgarh and pointed out that the duties to be discharged by Covid Health Assistant is to create awareness and sensitization towards the infection/pandemic, which can very well be done by the petitioners. 8. Learned counsel invited Court's attention towards the Government order dated 07.04.2020 and pointed out that the Additional Chief Secretary of the Medical & Health Department availed the services of all medical officers and nurses- compounders working in Ayurveda, Homeopathy and Unani Hospitals and argued that circumstances have seen no change and if the State had availed their services in April, 2020, there is no reason/justification for not giving the petitioners an opportunity to serve the State. 9. It was also argued by learned counsel that due to onslaught of Covid, the State is in requirement of a large number of health workers, which are not available and if the petitioners are given opportunity, it would be in the interest of all concerned. 10. Mr. K.S. Rajpurohit, learned AAG and Ms. Vandana Bhansali, learned Government Counsel, appearing for the respondent - State, opposed petitioners' prayer and argued that the advertisements in question have been issued by Medical & Health Department and not by Ayurvedic Department. Learned AAG argued that scope of the work to be undertaken by Covid Helath Assistants requires only GNM/Nurse Gr.II and the petitioners, who are Ayurveda Nurses/Compounders, cannot discharge the responsibilities, which a Covid Health Assistant is supposed to discharge. 11. Learned Additional Advocate General argued that not only the order of the State Government dated 18.05.2021 but also the advertisements issued by the concerned Chief Medical & Health Officers clearly stipulated educational qualification to be Diploma in Nursing and registration with Rajasthan Nursing Council. Since petitioners are neither GNM nor having registration with Rajasthan Nursing Council, they cannot be engaged as Covid Health Assistant. 12. It was also highlighted that the advertisements are not for regular recruitment and the engagement was only on urgent temporary basis, that too up to 31.07.2021 which period is soon going to pass, hence, no indulgence be granted. 13. Ms. 12. It was also highlighted that the advertisements are not for regular recruitment and the engagement was only on urgent temporary basis, that too up to 31.07.2021 which period is soon going to pass, hence, no indulgence be granted. 13. Ms. Vandana Bhansali, learned Government Counsel, informed that similar controversy came up before the Jaipur Bench of this Court in relation to Covid Health Officer, pursuant to advertisement dated 31.08.2020 and submitted that the controversy in hand is almost identical to one involved in the case of Raghvendra Agarwal & Ors. v. State & Ors. (SB Civil Writ Petition No.10342/2020, decided on 01.10.2020). She submitted that if the Ayush Doctors have been held ineligible for the post of Covid Health Officers, the Ayush Nurses cannot be treated differently and held eligible for the post of Covid Health Assistants. 14. Mr. Saluja, learned counsel for the petitioners, while meekly conceding that going by the conditions of the advertisement, petitioners cannot be held eligible to be considered for the post of Covid Health Assistant, alternatively prayed that a Committee of Secretary, Medical & Health Department and Secretary, Ayush Department be constituted to decide as to whether the petitioners are eligible for the posts in question and accommodated pursuant to these advertisements or against any further advertisement, if issued by the Government. 15. It was prayed that the Committee so constituted, be asked to compare the course/curriculum of the petitioners vis-a-vis the curriculum of GNM and take a pragmatic decision. 16. He maintained that petitioners do not claim priority over or parity with the GNMs. They may, however, be considered in case the posts remain vacant/unfilled. 17. Heard. 18. A perusal of the order dated 18.05.2021, issued by the State Government, clealry shows that the State Government, in Medical & Health Department, has decided to recruit Covid Health Consultants and Covid Health Assistants in a bid to combat emergent situation emanating from sudden upswing of Covid Cases. The Covid Health Assistants, to be appointed, are absolutely on urgent temporary basis and their tenure is only up to 31.07.2021. If the Government order dated 18.05.2021 and the advertisements issued for engagement of Covid Health Assistants are taken into consideration, there is no room for ambiguity that the Covid Health Assistants are required to be qualified as Nurse Gr.II/ GNM coupled with registration with Rajasthan Nursing Council. 19. If the Government order dated 18.05.2021 and the advertisements issued for engagement of Covid Health Assistants are taken into consideration, there is no room for ambiguity that the Covid Health Assistants are required to be qualified as Nurse Gr.II/ GNM coupled with registration with Rajasthan Nursing Council. 19. Neither do the petitioners possess qualification of GNM/Nurse Gr.II nor do they have registration with the Rajasthan Nursing Council. They are, therefore, ineligible for the posts advertised. 20. Though interim order has been passed by a Coordinate Bench of this Court (followed by this Court), but none of the petitioners have been given appointment, as has been informed by learned counsel for the respondents. 21. In the opinion of this Court, in absence of the basic qualification and registration with the Rajasthan Nursing Council, the petitioners cannot be thrusted upon the State. 22. So far as petitioners' argument that the course curriculum of petitioners is equal to course/curriculum of GNM/Nurse Gr.II is concerned, in my opinion, the Court cannot venture into such exercise. If at all it is required to be done, it can be done by the experts in the field. 23. All these writ petitions, being devoid of merit, are hereby dismissed. 24. Request to constitute a Committee, as suggested by Mr. Saluja is also turned down as it is the prerogative of the employer - respondent Medical & Health Department to decide the educational qualification and other conditions of the recruitment, depending upon its requirements and other relevant factors. 25. The petitioners may (if so advised) address a representation before the Secretary, Medical & Health Department, who may, if deemed appropriate, consider their request to accommodate them in future engagement of Covid Health Assistant or like recruitments. 26. Needless to observe that the Secretary, Medical & Health Department shall be free to take his independent view in the matter without being influenced by the observation made in the order instant. 28. All stay applications and any other interlocutory applications stand disposed of accordingly.